On Presidential Powers to Destabilize Entire Regions

In his latest installment on Trump and the powers of the American presidency, Ben Wittes manages to avoid calling his adversaries delusional while making delusional arguments himself, which makes for a much more intriguing post. In this one, he shifts his focus to the topics his adversaries had originally focused on, which Wittes calls “U.S. arms and war powers” but which for the moment I’ll call “national security.”

Wittes argues that the degree of authority granted the President in matters of war is scary, but less scary than not having such a powerful President.

It was a few years ago, on a panel at American University’s Washington College of Law, that I heard Brad Berenson—who served in the White House Counsel’s office under President Bush—make an arresting statement about the American Presidency.

The Presidency, Berenson argued, is an office of terrifying power. There is no legal question—at least as a matter of domestic constitutional law—that the president has the authority to order a preemptive nuclear strike on Tehran. Indeed, there is really only one thing, Berenson said, that is scarier than a president who has such power in his sole command: a president who does not have that power.

[snip]

“Energy in the Executive,” wrote Hamilton, “is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks. . . .” The reason? “A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.” Translation: If you want government to do things, you have to have an executive capable of it.

Wittes admits that presidency doesn’t have to be this way — indeed, that Israel, which he describes as “another democratic country that has ongoing security issues and fights wars semi-regularly” doesn’t have it. Me, I’d call Israel a partially democratic country that faces far greater security issues, but which has nevertheless thrived for 70 years without it. Which is another way of saying, right in the middle of his post arguing for the necessity of a unitary presidency, Wittes provides a counterargument that suggests that, at least in some circumstances (Israel has had a lot of help, after all), it’s not actually necessary.

Nevertheless, Wittes likes what we’ve got because it gives us decisiveness and accountability.

The American system has a lot to recommend it. It generates not merely decisiveness of action, but also political accountability for that action—what Hamilton called “a due dependence on the people” and “a due responsibility.” Divide up the executive authority and nobody really knows who gets credit for success and who gets blame for failure. Nobody is responsible for anything in Israel, for example. Give all the responsibility to one president, and that is not really a problem. Nobody doubts who is responsible for Obamacare, for example, or for the Iraq war.

It’s definitely true we know who to hold responsible for Obamacare. Getting into the Iraq War, too — though there’s far less certainty among the public about who is responsible for the failure to negotiate a SOFA, which led to the withdrawal timeline, and (arguably) to the resurgence of what would become ISIS. Both Obama and Bush get blamed.

But it’s an interesting argument particularly in light of Wittes’ prior dismissal of Conor Friedersdorf and Jennifer Granick’s concerns about drones and surveillance, because on those issues and many more, the Executive is shielded from much political and all legal accountability. Presidents have authorized a vast range of covert action over the years that have led to a great deal of blowback that they by definition cannot be held accountable for. Hell, as recently as 2013, the Executive was stone-walling SSCI member Ron Wyden about what countries we were conducting lethal counterterrorism operations in, and it took years of requests, starting before the Anwar al-Awlaki killing and continuing for some time after it, before Wyden was permitted to see the authorization for that.

No one may doubt who is responsible for Obamacare, but even select oversight committees, and especially voters, simply don’t know all the things they might want to hold a president accountable for.

And on the issues that (I think) Wittes would lump under “national security,” such secrecy, such unilateral power, actually may lead to rash and often stupid decisions. Setting aside what you think about the need for the President to have authority to order preemptive nuclear strikes (the “Bomb Power” that Garry Wills argues created the necessity for such secrecy), with such authority also comes the ability to create significant harms to the US by a thousand cuts of stupid covert action. We helped to create modern Sunni terrorism via such secret authority, after all.

Add in the fact that the Intelligence Community now claims cyberattacks are the biggest threat to the US. That’s an area where there has been a distinct lack of accountability, even after catastrophic failures.

But one thing never happens in either of those worlds: accountability.

On the national security side, I have long noted that people like then Homeland Security Czar John Brennan or Director of National Security Keith Alexander never get held responsible when the US gets badly pawned. The Chinese were basically able to steal the better part of the F-35 program, yet we still don’t demand good cyber practices from defense contractors or question the approach the NSA used on cyber defense. A few people lost their job because of the OPM hack, but not the people who have a larger mandate for counterintelligence or cybersecurity. Indeed, the National Security Council apparently considers cyber a third category, in addition to public safety and national security.

As a result, whereas we assume (wrongly) that we should expect the NatSec establishment to prevent all terrorist attacks, no one thinks to hold our NatSec establishment responsible if China manages to steal databases of all our cleared personnel.

Finally, our supposedly nimble presidency has been distinctly unable to act decisively in two areas that have been a bigger threat to the US than Iran or terrorism of late: financial recklessness and crime, and climate change. The reasons for inaction are dramatically different (though both have a lot to do with the way big money dominates our elections), but the effect is that the President has a lot of power to kill Americans in secret, but doesn’t wield that same power to prevent systemic catastrophes of another sort.

Wittes ends his piece by blaming the electorate — a stance I’m not unsympathetic with.

I want to suggest, in closing, that the problem here is not a structural flaw in the executive branch. That we are contemplating our fears of a Trump presidency reflects, rather, a flaw in the electorate that would contemplate his election and in the political leadership of one of our major political parties—leadership that prefers to back him than repudiate him. In a democracy, the people, generally speaking, get the president they ask for. And if the populace asks for an abusive, erratic, proudly ignorant figure of no coherent policy vision, it’s going to get that.

But I’m far more struck by this passage, which seems a much better argument for reversing some of what even Wittes admits has been growing power of the presidency.

[I]n the ordinary course of business, nobody gets to remove from the hands of the president the vast powers that he lawfully wields: the power to destabilize regions, launch military adventures, abrogate agreements, and destroy alliances. These powers are inherent features of powers of the presidency, and they are inherent powers that we actively need.

Wittes argues we can’t impose any limits on the President (even ones that existed as recently as 15 years ago), because we need the ability to do stupid things with little oversight.

Given how damaging those powers have already been, in the hands of purportedly sane Presidents, why do we think we want to keep it that way?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. blueba says:

    I would really like to get Chomsky’s views on this guy’s writing. He is exceptional at language such that his argument is for authoritarianism and against democracy.

    What strikes me most about the behavior of the US government as such and the Empire it represents as coming more and more to the surface and they are quite confident of their power to the extent they can just act and no one in the world can do a damn thing about it.

    The immense size of the Empire is staggering, ownership of the global financial system, its enemies all encircled, its ruthless lieutenants such as Angela Merkel – taking democracy from Greece as payment for money, now we know democracy can just be wiped out at will by Imperial powers.

    The authoritarianism that seeps out in every paragraph and conclusion taken together are quite chilling.

    The US growing “friendship” with India is often forgotten but it has become quite cozy such that with India fully in the Neoliberal camp China can be seriously threatened.

    Less and less reason for the slight of hand authoritarianism this is its public introduction.

    • bevin says:

      Is this a cheap crack at the expense beloved Clintons’ marriage?
      Or just an unintended pun?

  2. lefty665 says:

    How can we predict if the consequences of ad hoc and impulsive exercise of presidential powers will be worse than the methodical neocon exercise? On the other question of financial recklessness and crime again the question is ad hoc vs being in active cahoots with the criminals.
    .
    In either case it is difficult to argue that methodical and well documented wrong doing is a better alternative than risking ad hoc screw ups.
    .
    Both are horrid choices, but in such different ways that it is hard to figure out which is the most dangerous for the US and for the world. The rational answer is “both”.

  3. earlofhuntingdon says:

    Wittes is certainly delusional if he thinks the present political system holds anyone accountable, barring tens of thousands of poor and people of color, which our penal system devours annually, often for petty crimes. Those who commit the biggest crimes go untouched. Perhaps Mr. Wittes simply dislikes who this system finds accountable and adores those whom it ignores.

    His paean to decisiveness suggests Freudian adulation of power (give all the power to one president, no problemo) and those who wield it. It’s easy to be “decisive” if there’s no accountability. Ask the banksters, executives who kill by drone, or Rick Snyder, until recently a man devoid of fears of accountability. There are many score like them.

  4. John Casper says:

    Thanks emptywheel.

    “[I]n the ordinary course of business, nobody gets to remove from the hands of the president the vast powers that he lawfully wields: the power to destabilize regions…”
    .
    Why is Ben opposed to capitalism? Why does Ben want to further crush U.S. exports?
    .
    “Without spending–there are no sales;

    Without sales–there are no profits;

    Without profits–there is no demand for workers;

    Without demand for workers–there is no job creation;

    and without job creation–there is no recovery!”

    @ptcherneva

    Every time we contribute weapons or troops to, “destabilize,” someone, it reduces their purchasing power–aggregate demand, “Farmers struggling as markets overflow with milk, grain, livestock.”
    .
    “We are swimming in corn, soybeans …all of these commodities, and the U.S. dollar is so strong that nobody (overseas) can afford them,” said Ross Bishop, a beef cattle and crops farmer in Washington County.”

    http://www.jsonline.com/business/farmers-struggling-even-as-markets-overflow-with-milk-grain-livestock-b99698326z1-374389581.html

  5. earlofhuntingdon says:

    I would add James Carroll’s House of War (2006), in addition to Wills’ Bomb Power (2010), in support of the argument that the national security state’s fixation on secrecy, security and arch-conservative machismo were driven by the adoption of nuclear weapons as the foundation for our military, foreign policy and energy establishments.

  6. earlofhuntingdon says:

    One could easily argue that a fickle, inattentive electorate (perhaps distracted by the need to find scarce housing, jobs, education and healthcare) is both a cause and intended outcome of today’s political and economic policies. Its inattentiveness could be driven by media owners, who quickly determined that a principal lesson from Watergate was that we suffered from too much democracy, not too little. A citizenry lulled into thinking that it need only act every four years by pulling a lever in a voting booth might not feel it need impose continuing accountability on the president. Add a Congress convinced it need not impose accountability either – a boon to its members, who spend at least half their time re-electing themselves – and unaccountability blossoms like a desert spring.

  7. earlofhuntingdon says:

    Mr. Wittes makes a leap of faith in characterizing the “vast powers” of the president as “lawfully” wielded. Given the context, that seems a tautology.

  8. Jaango says:

    As a preface, earlier today, I published the following and at the Chicano Veterans Organization.

    An Over-Arching View of National Security and Defense…

    It’s very seldom that military vets, and in particular, the former Privates, Corporals and the Sergeants, are ever taken seriously when it comes to the subject matter of our nation’s “national security and defense.” Of course, this occurs for many reasons, and yet, fully understanding of today’s “perfection” to this arena of discourse, we need to recognize the following and as posited by writer Ben Wittes, a non-veteran:

    “In the ordinary course of business, nobody gets to remove from the hands of the president the vast powers that he lawfully wields: the power to destabilize regions, launch military adventures, abrogate agreements, and destroy alliances. These powers are inherent features of powers of the presidency, and they are inherent powers that we actively need.”

    Now, does the role of Congress have much if any ‘influence’ when it comes to foreign relations and equally important, the “authority” that has, over these many years, devolved to the Oval Office? Further, we continue to re-elect these ‘experts’ in the broad spectrum that is “national security and defense” to Congress, knowing full well that “capitalist conservatives” and its related hegemony, and as practiced on both sides of the aisle, makes it highly difficult to enter into this limited public discourse of our “national security and defense” and when viewed by the voices and faces seen and heard throughout our mass media outlets, including the newspaper and electronic industries.

    As such, our “challenge” is to participate and aggressively engage into this subject matter, and from the standpoint of our “in the weeds” experiences. Although somewhat difficult and yet, doable on our part, being of the mindset for what the late Molly Ivins personified, and that being “working harder and smarter” makes this challenge both fun and fractious.

    And our Tip of the Hat to the much-appreciated Marcy Wheeler at emptwheel.net!

  9. bevin says:

    Quoting Hamilton in this matter is very close to being outlandish. The powers of the Executive (King) in Hamilton’s day were curbed by practicality: it took months to organise strikes, pre-emptive or otherwise on anything or anywhere.

    As to the danger of concentrating power in the Executive, it has little to do with the President who (pace the King) can never be much more than the figurehead of that enormous complex which is the modern Presidency. It is a Thing (in Cobbett’s sense) which is completely divorced from the inluence of any representative organs.

    The United States never was a Democracy, today it is further away from being one than it has ever been. And far from being a Republic too: it has the worst characteristics of a despotism and a self perpetuating oligarchy.

    • martin says:

      quote”The United States never was a Democracy, today it is further away from being one than it has ever been. And far from being a Republic too: it has the worst characteristics of a despotism and a self perpetuating oligarchy.”unquote

      Never has the definition of the current “state” of the United States been so well defined. I loath the word.. but given I can’t seem to find another.. KUDOS to you.

      • martin says:

        On the other hand…quote” In a democracy, the people, generally speaking, get the president they ask for. And if the populace asks for an abusive, erratic, proudly ignorant figure of no coherent policy vision, it’s going to get that. It is far too much to ask of the Constitution and the structure of the executive branch to expect insulation from the consequences of that decision. “unquote

        The last 200 years of the voting expression of the Dumbest Country on the Planet is living proof.

  10. Evangelista says:

    A couple of comments re the article here, not Wittes’ escritoral imitation of John Yoo (or bid to assume Yoo’s fallen mantle):

    1. “two areas that have been a bigger threat to the US than Iran or terrorism of late: financial recklessness and crime, and climate change. ” For accuracy this sentence should be: “two areas that are bigger threats to the US than Iran or terrorism of late are financial recklessness and crime, including climate change.”: The business compassed by the designator “Climate Change” and ascribed legitimacy by the non-science based “science” ascribed “Climate Science” is financial recklessness and crime. What makes the recklessness and crime worse is that the actions advocated for supposed ‘cure’ for “Climate Change” (which is, in fact, environmental imbalance, of which changes in climate patterns are symptoms) is making Terran environmental imbalance worse, and will bring, and is bringing the imbalance to point-zero, the point where current balance will not be restorable however deitically-capable Man imagines his technologies and thermal-energy-release producing manipulating powers might make his kind, and whatever any part or all of his kind might do. From point-zero the planet’s environment will have to re-stabilize itself in whatever new, or next, balance it will attain. [Note that this is not an arguable issue: If you turn your atmospheric-carbon converters (forests) to carbon-storage (burnt trees, equivalent to fields of coal, pools of oil, etc.) you stop the previously ongoing conversion process (replacing it, if at all, with fractional conversion-processing from resurgent, small and young converters), which accelerates the atmospheric-carbon overloading and oxygen carbon-entrapment that are going to drown your oxygen-dependent, and atmospheric oxygen depleting, species.]

    2. “blaming the electorate — a stance I’m not unsympathetic with.” Think practically for a minute, or more, if needed, then answer rationally: What is an electorate, any electorate, meaning any large body of people with varied opinions from varied education levels and varied susceptibilities to manipulations of focus and perceivings and believings, able to unify to do that would, or could, alter a course that empowered employees of the electorate, taking the bit of government in their teeth, as the old saying was, tangent off on and run away on?

    Histories show that it takes more than most of, or even all of, the passengers on a runaway omnibus yelling “Whoa!!” at the running-away horses to halt the runaway. Histories also show that in most cases the omnibuses-of-state whose enharnessed ‘horses’ runaway are brought to stop by overturn or a dictator, a single party catching and dragging the runaway ‘horses’ down to stop them. [Note that the old-fashioned passengers on omnibus with horses in harness drawing analogy used here reflects old-fashioned “democratic” forms, before “black-box” vote manipulation changed the demographic of “democratic”.] In matters of dynamic circumstance balance, political balance, as well as environmental balance, there comes a tipping-point, a zero-point, at which there is no action any individual, or group of individuals, can take that will do anything but fill the time the inevitable takes to occur.

    Asserting that “The People”, or “The Electorate” should do something is equivalent to asserting that the same, or any others, should have done something to prevent any named disaster. Hitler, Stalin, Joe McCarthy etc. could not be stopped by “The Electorate”. Only those on equal or equivalent authority ground could, or can. If those do not, if they join, instead, the electorate may just as well sit back and wait and watch through, to death or end result, when there will be pieces for the survivors to pick up and use to rebuild with.

    Apropos nothing, since it has no relevance in the topic situation, under the United States Constitution the Executive has none of the powers the current United States’ executive has assumed and is allowed or justificated to have. Under the United States Constitution constituted governmental form, for example, ‘Executive Orders’ are equivalent to restaurant orders: They are wants, wishes, perhaps demands, that, if the congressional kitchen is unable, or disinclined, to fill, or that a judiciary management determines is not appropriate Restaurant United States fare, the Executive has to do without, and The People are not, and cannot be obligated to be responsible to obtain, maintain or supply.

    Obviously the current United States government is not a United States Constitution constituted government, which means it is a usurper government, which means a moot, null and void government, all of whose laws, legal theories, constructions, and reconstructions are moot, null and void, given such validity as they might seem to be able to coerce by force; by authoritarian imposition.

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